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Legal Narratology (Reviewing Law's Stories: Narrative and Rhetoric In REVIEWS Legal Narratology RichardA Posnert Law's Stories: Narrativeand Rhetoric in the Law. Peter Brooks and Paul Gewirtz, eds. Yale University Press, 1996. Pp v, 290. The law and literature movement has evolved to a point at which it comprises a number of subdisciplines. One of the newer ones--call it "legal narratology"-is concerned with the story elements in law and legal scholarship. A major symposium on le- gal narratology was held at the Yale Law School in 1995, and Law's Stories is a compilation of essays and comments given at the symposium. The book is not definitive or even comprehen- sive. Not all bases are touched, and a number of leading practi- tioners of legal narratology did not participate. But it is about as good a place as any to start if you want to understand and evalu- ate the new field. The papers in the volume span a wide range, covering the narrative elements in legal scholarship, trials, sen- tencing hearings, confessions, and judicial opinions. The editors, Peter Brooks and Paul Gewirtz, a professor of comparative litera- ture and a professor of law respectively, have each written a lu- cid and informative introduction. The book is well edited and highly readable-and so well balanced that, as we shall see, it makes the reader wonder just how bright the future of legal nar- ratology is. A story, or, better, a narrative (because "story" suggests a short narrative), is a true or fictional account of a sequence of t Chief Judge, United States Court of Appeals for the Seventh Circuit; Senior Lec- turer in Law, The University of Chicago. I thank Martha Nussbaum for helpful comments on earlier drafts of this review. The University of Chicago Law Review [64:737 events unfolding in time, the events being invented, selected, emphasized, or arranged in such a way as to explain, inform, or edify. As Brooks reminds us in his introduction, paraphrasing Aristotle, stories "must have beginnings, middles, and ends" and must be "so constructed that the mind of the listener, viewer, or reader [can] take in the relation of beginning, middle, and end" and "see the end as entailed by a process" (p 17). The story need not be true, but it must be coherent, intelligible, and significant. Narrative is ubiquitous in history, in biography, in litera- ture, in myth, and in most religions. It plays a smaller but still important role in other fields as well, including the visual arts and philosophy and even economics, where "story," contrasted with a formal model, is the name used for the informal, intuitive explanation, which is often indeed story-like, of an economic phenomenon. Asked to explain why manufacturers engage in re- sale price maintenance, an economist might tell the following "story": A manufacturer of microwave ovens wants his dealers to provide presale services, such as a demonstration of how you can cook with one. Each dealer would hesitate to incur the cost of providing such services lest a competing dealer be able to under- price him by avoiding the cost. So the manufacturer fixes a floor under the dealers' retail prices that is high enough to enable the dealers to defray the costs of the services. Forced to compete for customers without cutting prices, the dealers vie with one an- other to provide presale services that customers value. The manufacturer is better off, which is why manufacturers engage in resale price maintenance (or would if permitted by the anti- trust laws). End of story. Stories play a big role in the legal process. Plaintiff and de- fendant in a trial each tell a story, which is actually a translation of their "real" story into the narrative and rhetorical forms authorized by law, and the jury chooses the story that it likes better. (If it is a criminal case and the defendant's confession is placed in evidence, there is a story within the story. Criminal confessions are the subject of Peter Brooks's essay (pp 114-34).) This of course is not how the trial process is conceptualized by the law. The law says that the plaintiff must prove each element of his claim by a preponderance of the evidence (or must prove it beyond a reasonable doubt, if it is a criminal case, but I can ig- nore that detail), and likewise the defendant if he pleads any af- firmative defenses. Ronald Allen, unfortunately not a participant in the symposium, has shown that if this, the official account of the trial process, were taken literally, it would imply that plain- tiffs would win many cases in which the likelihood that their 1997] Legal Narratology claim was valid was actually very slight.' He argues convincingly that what really happens in a trial is that each side tries to con- vince the jury that its story is more plausible than the opponent's story. The storytelling, indeed mythmaking, potential of the criminal trial is the subject of a brilliant essay by Robert Fergu- son on the trial of John Brown.2 The essay is not in the book, but Robert Weisberg's paper on trials as narratives, which is, sum- marizes Ferguson's essay compactly and skillfully (pp 79-83). The Supreme Court's capital punishment jurisprudence has magnified the story element in the sentencing phase of capital trials. The Court insists that the defendant be permitted to tell a no-holds-barred story of his life that is designed to persuade the jury that he does not deserve to be put to death. And now the Court has decided that the victim's family may be allowed to tell the jury the absent victim's story, to offset the impact of the de- fendant's story.4 One of the best papers in this volume is Paul Gewirtz's in defense of the "victim impact statement" in capital cases (pp 135-61). Judicial opinions usually have a story element, the narration of the facts of the case that opens most opinions. Some judges try to cast the whole opinion as the story of the parties' dispute, us- ing chronology rather than a logical or analytical structure to or- ganize the opinion. Cardozo in the common law opinions that he wrote as a state court judge, and Learned Hand in his copyright opinions, were masters of vivid narration of the facts of the case.' Stories play a smaller role in legal scholarship than they do in the legal process itself, but their role is growing. "Oppositional scholarship" by critical race theorists and by feminists relies heavily on stories-historical, autobiographical, or even science ' See generally Ronald J. Allen, A Reconceptualization of Civil Trials, 66 BU L Rev 401 (1986); Ronald J. Allen, The Nature of JuridicalProof, 13 Cardozo L Rev 373 (1991). Suppose that a plaintiff in a particular tort case must prove three things to prevail on his claim for $100,000 in damages for personal injury (forget any affirmative defenses the de- fendant might have): that the defendant was negligent, that the defendanqs negligence caused injury to the plaintiff, and that the injury imposed a cost of at least $100,000 on the plaintiff. Suppose each of the three propositions has a probability of.51 of being true. Then the probability that all three are true (assuming they are independent of each other) is only .13 (.51 * .51 * .51). Yet, on these assumptions, according to the official story of the proof process, the plaintiff has proved his case! See also id at 374 n 4 (noting that "[s]uch issues will generally not be independent, but that simply makes the mathe- matics slightly more complicated without affecting the analysis!). 2 See Robert A. Ferguson, Story and Transcriptionin the Trial of John Brown, 6 Yale J L & Humanities 37 (1994). 3 Lockett v Ohio, 438 US 586 (1978). " Payne v Tennessee, 501 US 808 (1991). ' See, for example, Hynes v New York Central Railroad Co, 231 NY 229, 131 NE 898 (1921) (Cardozo); Nichols v UniversalPictures Corp, 45 F2d 119 (2d Cir 1930) (Hand). The University of Chicago Law Review [64:737 fiction-of oppression, designed to stir the reader to a more vivid awareness of the predicaments of the oppressed.6 Gewirtz links this literature to victim impact evidence in capital cases by pointing out that such evidence "consists of stories of victimized and silenced people, who are the usual concern of many in the [legal] storytelling movement" (p 143). "Oppositionists" do not like his point because they do not like capital punishment, and allowing victim impact statements is calculated to increase the number of cases in which it is imposed. If story is thus an important element in law, what are the best intellectual tools for examining and evaluating it? The natu- ral places to look, it might seem, would be literary theory, which has long concerned itself with narrative as a pervasive feature of imaginative literature, and epistemology, which has long taken an interest in the truth value of narrative, for example historical narrative.8 Yet much of the best scholarship on the story element in law owes little to these or any other fields outside of law itself. Gewirtz's paper on victim impact statements does owe a debt to recent philosophical writings by Martha Nussbaum, Robert Solomon, Ronald de Sousa, and others, on the role of emotion in practical reason. Gewirtz emphasizes that the emotionality of a victim's (or a defendant's) narrative may quicken thought by riv- eting attention, shaking the listener or reader out of his dogmatic slumber, making him more receptive to new ideas (pp 145-46).
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